REACTION TOWARDS STATE SOVEREIGNTY (1816-1829)
From the close of the War of 1812, an increasing reaction was in
progress in various states against the ardent nationalism which
characterized the country at that time. The assertion of the
doctrine of state sovereignty by the Hartford Convention in 1814
[Footnote: Babcock, Am. Nationality (Am. Nation, XIII.), chap. xv.]
so aroused the other sections of the country that particularism was
for the time discredited. Leaders of Virginia politics even approved
a rumor that Madison would march troops against New England; Judge
Roane, later a champion of Virginia's sovereignty, denounced the
"anarchical principles" of the section. [Footnote: Randolph-Macon
College, John P. Branch Hist. Papers, II., 18.] In that period, when
Calhoun and the other leading statesmen of South Carolina supported
the protective tariff and the bonus bill, when Madison, the author
of the Virginia resolutions of 1798, signed the bill for the
recharter of the national bank, when Chief-Justice Marshall, a son
of Virginia, was welding firm the bonds of nationalism in his great
series of decisions limiting the powers of the states and developing
the doctrine of loose construction of the Constitution, [Footnote:
Babcock, Am. Nationality (Am. Nation, XIII.), chap. xviii.] and when
New England itself was explaining away the particularistic purposes
of the Hartford Convention, it might well seem that the days of
state sovereignty had come to an end.
Even then, however, the pendulum was starting to swing in the
opposite direction. The crisis of 1819 and the decisions of the
supreme court asserting the constitutionality of the national bank
under the broad national conception of the Constitution, produced
protests and even resistance from various states whose interests
were most affected. Ohio in 1819 forcibly collected a tax on the
branch bank of the United States, in defiance of Marshall's decision
rendered earlier in the year in the case of McCulloch vs. Maryland;
and in 1821 her legislature reaffirmed the doctrines of the Virginia
and Kentucky resolutions, and passed an act withdrawing the
protection of the laws of the state from the national bank,
[Footnote 2: Ames, State Docs. on Federal Relations, No. 3, p. 5.]
and even persisted in her resistance after the decision (Osborn vs.
Bank of U. S., 1824) against the state. But the proceeds of the tax
were ultimately restored. Nor was Ohio alone in her opposition to
this decision. Kentucky was almost equally excited, and Senator R.
M. Johnson made a vain attempt in 1821 to procure an amendment to
the Constitution providing that in controversies in which a state
was a party the Senate of the United States should have appellate
jurisdiction. [Footnote: Annals of Cong., 17 Cong., I Sess., I., 23,
68, 96; Ames, State Docs., No. 3, p. 17; Ames, Amendments to the
Const., in Am. Hist. Assoc., Report 1896, II., 161; Niles' Register,
XVII., 289, 311, 447.] Judge Roane, chief-justice of Virginia, in a
series of papers in the Richmond Enquirer, challenging the
nationalistic reasoning of the court, asserted that the Constitution
resulted from a compact between the states, [Footnote 2: Randolph-
Macon College, John P. Branch Hist. Papers, II., 106-121.] and in
this attack he was heartily supported by Jefferson. [Footnote 3:
Jefferson, Writings (Ford's ed.), X., 140, 189, 229.] Justice
Marshall, in Cohens vs. Virginia [Footnote 4: 6 Wheaton, 264.]
(1821), decided that the supreme court had appellate jurisdiction in
a case decided by the state court where the Constitution and the
laws of the United States were involved, even though a state was a
party.
Virginia's attorneys maintained, on the contrary, that the final
construction of the Constitution might be given by the courts of
every state in the Union; and Judge Roane, whose own decision had
been overturned, again appealed to his fellow-citizens in a strong
series of articles. Again Jefferson denounced the consolidating
tendencies of the judiciary, "which, working like gravity without
any intermission, is to press us at last into one consolidated
mass." Virginia entered her solemn protest against the decision, and
her House of Delegates reaffirmed the argument of Virginia's
counsel, and asserted that neither the government of the state nor
of the United States could press the other from its sphere. In
effect, Virginia's position would have given the state a veto on the
will of the federal government, by the protection which her courts
could have extended to the individual subject to her jurisdiction
under the interpretation placed by the state upon the Constitution.
[Footnote: Randolph-Macon College, John P. Branch Hist. Papers, II.,
28; Jefferson, Writings (Ford's ed.), IX., 184; cf. ibid., X.
passim; Madison, Writings, III., 217-224; Ames, State Docs. on
Federal Relations, No. 3. p. 15; Niles' Register, XX., 118; 6
Wheaton 385.] The leading expositor of Virginia reaction in this
period was John Taylor of Caroline, the mover of the resolutions of
1798. His "Construction Construed", published in 1820, was
introduced by a preface in which the editor said: "The period is
indeed by no means an agreeable one. It borrows new gloom from the
apathy which seems to run over so many of our sister states. The
very sound of State Rights is scarcely ever heard among them; and by
many of their eminent politicians is only heard to be mocked at."
Taylor himself was led to write the book by the agitation over the
Missouri question and the case of McCulloch vs. Maryland. One of its
purposes was to insist that sovereignty was not divided between the
separate spheres of the state and federal government, but rested
rather in the people of the several states. Two years later, in his
"Tyranny Unmasked", Taylor developed the idea that the division of
the power of the people between the federal and state governments
would be nugatory if either Congress or the supreme court could
exclusively determine the boundaries of power between the states and
the general government. His remedy for usurpation was the "state
veto," which was to be "no mere didactic lecture," but involved the
right of resisting unconstitutional laws. He met the difficulty that
the people of one state would construe the Constitution for the
people of all the states, by the answer that it was the lesser evil.
[Footnote: Taylor, Tyranny Unmasked, 258, 262.] Again in 1823, in
his "New Views of the Constitution", he expounded the same ideas,
and dwelt upon the position of the states as the defenders of
separate geographical interests against oppression by the majority
of the nation. He saw a grave danger in the relinquishment to
Congress of the power to deal with local and dissimilar geographical
interests by loose-construction legislation upon such subjects as
banks, roads, canals, and manufactures. It would tend to produce
geographical combinations; sections by combining would exploit and
oppress the minority; "Congress would become an assembly of
geographical envoys from the North, the South, and the West."
Against these evils, the Constitution, according to his view, had
provided by confining geographical interests within state lines
instead of "collecting them into one intriguing arena." The states,
reposing on their sovereignty, would interpose a check to oppressive
action and to the combination of sectional interests against the
minority. [Footnote 1: Taylor, New Views (ed. of 1823), 261 et seq.]
Not a theory of government, however, but a political exigency called
out a working principle of state rights. When the industrial policy
of the government fell under the complete control of the north, and
the social system of the south seemed to be menaced, state
sovereignty controlled the southern policy. The increase in
popularity of Clay's American system of internal improvements and a
protective tariff aroused the apprehensions of the whole planting
section; the struggle over the admission of Missouri taught the
south the power of an unfriendly national majority; and, in 1822, a
threatened insurrection of the Negroes at Charleston brought home to
the whole section, and particularly to South Carolina, the dangers
arising from an agitation of the question of slavery. [Footnote 2:
Cf. Hart, Slavery and Abolition (Am. Nation, XVI.), chap. viii.] In
the irritated condition and depression of this section, the triumph
of loose construction principles and the possible election of a
northern president seemed to presage not only the sacrifice of their
economic interests, but even the freeing of their slaves. [Footnote
3: See the resolutions of Virginia, December 23, 1816, in Ames,
State Docs. on Federal Relations, No. 5, p. 3.] The colonization
society, which in its origin had been supported by southern men,
became an object of denunciation by the lower south after the
Missouri controversy and the insurrection of 1822. The opposition
was intensified by the disposition of the society, towards the close
of the period, to advocate emancipation, as well as the removal of
the existing free Negroes. [Footnote: Cf. Hart, Slavery and
Abolition (Am. Nation, XVI.), chap. xiv.]
In Virginia the doctrine of state rights was supported by the
friends of Crawford, and, in general, by the older portion of the
state. In her western counties, however, where a movement was in
progress for a constitutional convention to redistribute political
power so that the populous interior should not be subordinated to
the slave-holding minority of the coast, there was a strong
sentiment in favor of the constitutionality and expediency both of
federal internal improvements and the tariff. Nevertheless,
Virginia's voice was determined by the ascendancy of the old-time
plantation interests. In 1825, Jefferson suggested that the
legislature of Virginia should pass a set of resolutions, declaring
the internal-improvement laws null and void. He advised, however,
that, at the same time, the issue should be avoided by an act of the
Virginia legislature validating these congressional laws [Footnote
2: Jefferson, Writings (Ford's ed.), X., 348-352; Ames, State Docs.
on Federal Relations, No. 4, p. 8.] until action could be taken on a
carefully guarded proposal to amend the Constitution so as to grant
the right. This was the last effort of Jefferson to stay the tide of
internal improvements which was sweeping opposition before it, and
even he withdrew his project before it was acted on. His death (July
4, 1826) removed from Virginia the most influential advocate of
state sovereignty and the greatest of the Virginia dynasty since
Washington. On the same day John Adams died. The men who made the
declaration of independence were passing away, but the spirit of
that epoch was reviving in the south.
South Carolina was the theatre of a conflict between the old-time
forces of nationalism, of which Calhoun had been the most prominent
exponent, and the newer tendencies which would safeguard the
interests of the commonwealth by appealing to the doctrine of state
sovereignty. [Footnote: Houston, Nullification in S. C., chap. iv. ]
At first, the conservative party was in the ascendancy. In 1820 the
House of Representatives of South Carolina passed a resolution which
deprecated the system of protection as premature and pernicious, but
admitted that Congress possessed the power of enacting all laws
relating to commerce, and lamented the practice "of arraying upon
the questions of national policy the states as distinct and
independent sovereignties in opposition to, or (what is much the
same thing), with a view to exercise a control over the general
government"; [Footnote 2: Ames, State Docs. on Federal Relations,
No. 4, p. 3.] and, as late as 1824, the same body passed resolutions
declaring that the man "who disseminates doctrines whose tendency is
to give an unconstitutional preponderance to State, or United
States' rights, must be regarded as inimical to the forms of
government under which we have hitherto so happily lived"; and that
"the People have conferred no power upon their state legislature to
impugn the Acts of the Federal Government or the decisions of the
Supreme Court of the United States." [Footnote: Ames, State Docs. on
Federal Relations, No. 4, p. 6.] The state Senate was already
controlled by the opponents of national power, led by Judge Smith;
and the next year the Lower House also fell under their dominance.
The attitude of McDuffie illustrates the transitional conditions in
South Carolina. In 1821 he published a pamphlet supporting a liberal
construction of the powers of Congress, and refuting the "ultra
doctrines respecting consolidation and state sovereignty." [Footnote
2: Defense of a Liberal Construction, etc., by "One of the People."
Reprinted in Philadelphia, 1831. To this pamphlet, Governor Hamilton
had prefixed "an encomiastic advertisement."] In 1824, also, he
supported the constitutionality and expediency of the general survey
act, and repudiated the idea that the state governments were "in any
respect more worthy of confidence than the General Government."
[Footnote 3: Annals of Cong., 18 Cong., I Sess., 1372.] But he
opposed the tariff of 1824, and in 1825 he voted against specific
measures for internal improvement. Soon after this he joined the
ranks of the advocates of state sovereignty, and, together with
Hamilton and Hayne, so far outstripped the leaders of that faction
that Judge Smith and his friends found themselves in a conservative
minority against the ultra doctrines of their former opponents.
Doubtless the reversal of South Carolina's attitude was accelerated
by the slavery agitation which followed the emancipation proposition
of Ohio, already mentioned, and by the contest over the Negro seamen
act, [Footnote: Passed December 21, 1822. See Ames, State Docs. on
Federal Relations, No. 5, p. 12; cf. Hart, Slavery and Abolition
(Am. Nation, XVI.), chap. xix.] a measure by which South Carolina,
in consequence of the plot at Charleston, required that free Negroes
on vessels entering a port of South Carolina should be imprisoned
during the sojourn of the ship. The act brought out protests, both
from other states and from Great Britain, whose subjects were
imprisoned; and it was declared unconstitutional by Adams's
attorney-general and by the federal courts nevertheless, it remained
unrepealed and continued to be enforced. [Footnote 2: McMaster,
United States, V., 200-204, 417.] The Senate of South Carolina met
the situation, at the close of 1824, by resolutions affirming that
the duty of preventing insurrections was "paramount to all laws, all
treaties, all constitutions," and protesting against any claims of
right of the United States to interfere with her domestic
regulations in respect to the colored population. [Footnote 3: Ames,
State Docs. on Federal Relations, No. 5, p. 14.]
Georgia, a few years later (December, 1827), in opposition to the
Colonization Society, [Footnote 4: Ibid., 17, 19.] vehemently
asserted her rights, and found the remedy no longer in remonstrance,
but in "a firm and determined union of the people and the states of
the south" against submission to interference. Already Georgia had
placed herself in the attitude of resistance to the general
government over the question of the Indians within the state. From
the beginning of the nation, the Indians on the borders of the
settled area of Georgia were a menace and an obstacle to her
development. Indeed, they constituted a danger to the United States
as well: their pretensions to independence and complete sovereignty
over their territory were at various times utilized by adventurers
from France, England, and Spain as a means of promoting the designs
of these powers. [Footnote: Am. Hist. Rev., X., 249.] Jackson drove
a wedge between the Indian confederacies of this region by his
victories in the War of 1812 and the cessions which followed.
[Footnote: Babcock, Am. Nationality (Am. Nation, XIII.), chaps, ii.,
xvii.] Although, in 1821, a large belt of territory between the
Ocmulgee and Flint rivers was ceded by the Creeks to Georgia, the
state saw with impatience some of the best lands still occupied by
these Indians in the territory lying between the Flint and the
Chattahoochee.
The spectacle of a stream of Georgia settlers crossing this rich
Indian area of their own state to settle in the lands newly acquired
in Alabama and Mississippi provoked Georgia's wrath, and numerous
urgent calls were made upon the government to carry out the
agreement made in 1802, [Footnote: Phillips, "Georgia and State
Rights," in Am. Hist. Assoc., Report 1901, II., 34.] by completing
the acquisition of these Indian lands. Responding to this demand, a
treaty was made at Indian Springs in February, 1825, by which the
Creeks ceded all of their lands in Georgia; but when Adams came to
the presidency he was confronted with a serious situation arising
from this treaty. Shortly after it had been ratified, Mclntosh, a
principal chief of the Lower Creeks, who had signed the treaty,
contrary to the rule of the tribe and in spite of the decision to
sell no more land, was put to death; and the whole treaty was
repudiated by the great body of the Creeks, as having been procured
by fraud and made by a small minority of their nation. The
difficulty arose from the fact that the various villages of these
Indians were divided into opposing parties: the Upper Creeks, living
chiefly along the forks of the Alabama, on the Tallapoosa and the
Coosa in Alabama, constituting the more numerous branch, were
determined to yield no more territory, while the principal chiefs of
the Lower Creeks, who dwelt in western Georgia, along the Flint and
Chattahoochee branches of the Appalachicola, were not unfavorable to
removal.
When Governor Troup, of Georgia, determined to survey the ceded
lands, he was notified that the president expected Georgia to
abandon the survey until it could be done consistently with the
provisions of the treaty. Although the treaty had given the Creeks
until September, 1826, to vacate, Governor Troup informed General
Gaines, who had been sent to preserve peace, that, as there existed
"two independent parties to the question, each is permitted to
decide for itself," and he announced that the line would be run and
the survey effected. The defiant correspondence which now ensued
between the governor and the war department doubtless reflected the
personal hot-headedness of Troup himself, but Georgia supported her
governor and made his defiances effective. He plainly threatened
civil war in case the United States used force to prevent the
survey. [Footnote: Ames, State Docs on Federal Relations, No. 3, pp.
25-31; Phillips, "Georgia and State Rights," in Am. Hist. Assoc.,
Report 1901, II., 58-60; 40 (map).]
On investigation, President Adams reached the conclusion that the
treaty was wrongfully secured, and gave orders for a new
negotiation. This resulted in the treaty of Washington, in January,
1826, supplemented by that of March, 1826, by which the Creek
Indians ceded all of their lands within the state except a narrow
strip along the western border. This treaty abrogated the treaty of
Indian Springs and it provided that the Indians should remain in
possession of their lands until January 1, 1827. Throughout the
whole of these proceedings Georgia was bitterly incensed. Claiming
that the treaty of Indian Springs became operative after its
ratification, and that the lands acquired by it were thereby
incorporated with Georgia and were under her sovereignty, the state
denied the right of the general government to reopen the question.
"Georgia," said Troup, "is sovereign on her own soil," and he
entered actively upon the survey of the tract without waiting for
the date stipulated in the new treaty. When the surveyors entered
the area not ceded by the later treaty, the Indians threatened to
use force against them, and at the beginning of 1827 another heated
controversy arose. The president warned the governor of Georgia that
he should employ, if necessary, "all the means under his control to
maintain the faith of the nation by carrying the treaty into
effect." Having done this, he submitted the whole matter in a
special message to Congress. [Footnote: February 5, 1827.
Richardson, Messages and Papers, II., 370.]
"From the first decisive act of hostility," wrote Troup to the
secretary of war, "you will be considered and treated as a public
enemy"; and he announced his intention to resist any military attack
on the part of the United States, "the unblushing allies of the
savages." [Footnote: Harden, Troup, 485.] He thereupon made
preparations for liberating any surveyors who might be arrested by
the United States, and for calling out the militia. In the House of
Representatives, a committee recommended the purchase of the Indian
title to all lands in Georgia, and, until such cession were
procured, the maintenance of the treaty of Washington by all
necessary and constitutional means; but the report of the Senate
committee, submitted by Benton, supported the idea that the
ratification of the treaty of Indian Springs vested the title to the
lands in Georgia, and reached the conclusion that no preparations
should be made to coerce the state by military force. In November,
1827, the Creeks consented to a treaty extinguishing the last of
their claims, and the issue was avoided.
In the mean time, the Cherokees in the north-western portion of the
state gave rise to a new problem by adopting a national constitution
(July 26, 1827) and asserting that they constituted one of the
sovereign and independent nations of the earth, with complete
jurisdiction over their own territory to the exclusion of the
authority of any other state. [Footnote: Text in Exec. Docs., 23
Cong., 2 Sess., III., No. 91 (Serial No. 273); Ames, State Docs. on
Federal Relations, No. 3, p. 36; see also House Reports, 19 Cong., 2
Sess. No. 98.] This bold challenge was met by Georgia in the same
spirit which guided her policy in regard to the Creek lands. The
legislature, by an act of December 20, 1828, subjected all white
persons in the Cherokee territory to the laws of Georgia, and
provided that in 1830 the Indians also should be subject to the laws
of the state. Thus Georgia completed her assertion of sovereignty
over her soil both against the United States and the Indians. But
this phase of the controversy was not settled during the presidency
of Adams.